High Court bars Kecobo from extending MCSK, Prisk, Kamp licences
According to the petitioners, Kecobo had sought to extend each of the CMO certificates of registration, having invited fresh applications from PRISK, KAMP and MCSK.
The High Court has restrained the Kenya Copyright Board (Kecobo) from renewing the registration certificates of the Music Copyright Society of Kenya (MCSK), the Kenya Association of Music Producers (Kamp) and the Performers Rights Society of Kenya (Prisk) as collective management societies.
Justice Lawrence Mugambi on Tuesday granted an application by two petitioners, David Mabonga Barasa and Maxwell Barasa, restraining Kecobo from renewing the registration certificates of the three collective management organisations (CMOs) tasked with collecting royalties on behalf of artists for another six months after their current licences expire.
“I have read the Chamber summons application, the notice of motion application, all dated 25/3/2024, as well as the supporting affidavit of David Mabonga Barasa of even date and now make orders as follows:
"The Application is certified urgent and shall be heard on a priority basis.
"The applicant has demonstrated through his affidavit that there is an urgent need for issuance of an exparte interim order prohibiting the first respondent (Kecobo) from issuing Certificates of Registration to the Interested Parties as Collective Management Societies pending the hearing and determination of this application interpartes. The Order is hereby granted to last until the next mention date unless extended by an order of this Court.”
According to the petitioners, Kecobo had sought to extend each of the CMO certificates of registration, having invited fresh applications from PRISK, KAMP and MCSK.
They claim the regulator, headed by former Cherangany MP, Joshua Kutuny, had planned to hold a meeting on Wednesday to consider the applications from the CMOs.
However, the petitioners moved to court to stop the process, citing several issues.
Through their lawyer Moses Mutanda, Mabonga and Barasa argued that Kecobo’s move to welcome fresh applications by the CMOs contravened Lady Justice Hedwig Ong’udi’s judgment issued on October 31, 2023, of case No.E161 of 2013 between musician Justus Ngemu, Kecobo and the three CMOs.
“The judgment prohibited the issuance of licenses without the 1st respondent’s Board of Directors or issuance of a provisional licence," Mabonga and Barasa told the court.
In her judgment, Justice Hedwig found Kecobo’s Executive Director, Edward Sigei, guilty of issuing licenses to the three CMOs without the regulator having a board in place.
She said Mr Sigei was circumventing the functions of the board, which is mandated by the Copyright Act, to issue operating licenses to the CMOs.
The Judge issued a permanent injunction restraining Mr Sigei from issuing renewal certificates to the CMOs until Kecobo lawfully constitutes a board.
November last year, days after Kutuny's appointment by President William Ruto as Kecobo’s new chairman, he reinstated KAMP, PRISK and MCSK’s licenses.
“The board was informed of the recent High court decision in which the court nullified the CMOs licenses earlier issued by the management. To ensure the operationalization of CMOs and the smooth collecting and distributing of royalties, the board hereby under Section 46 3(A) of the Copyright Act issue provisional licenses to the three CMOs effectively today for a period of six months,” Kutuny directed while reinstating the licenses.
However, Mabonga and Barasa insist that the current in-place regulator’s board of directors is not properly constituted.
They are accusing Kecobo of subverting the constitutional ideals of governance, laws and public participation, accusing it of soliciting applications for extension of the provisional licenses that it issued illegally in the first place.
The matter will come up for further directions on April 25.
